Tottress vs. City of Tulsa, The, et al.
Filing
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OPINION AND ORDER by Judge Gregory K Frizzell ; dismissing/terminating case ; granting 9 Motion to Dismiss; granting 14 Motion to Dismiss Party (hbo, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
BENJAMIN EARL TOTTRESS,
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Plaintiff,
v.
CITY OF TULSA, a municipal corporation
of the State of Oklahoma; TULSA POLICE
DEPARTMENT; COUNTY OF TULSA
COUNTY, STATE OF OKLAHOMA,
and the BOARD OF COMMISSIONERS
OF TULSA COUNTY; TULSA COUNTY
DISTRICT ATTORNEY’S OFFICE;
JAMES HAWKINS, Tulsa County
Assistant District Attorney; TULSA
COUNTY SHERIFF’S DEPARTMENT; and
STANLEY GLANZ, Sheriff of Tulsa County,
Defendants.
Case No. 10-CV-478-GKF-FHM
OPINION AND ORDER
Before the court are the Motion to Dismiss of defendants County of Tulsa County and
Board of County Commissioners of Tulsa County, Tulsa Sheriff’s Department and Sheriff
Stanley Glanz [Dkt. #9] (collectively, “Tulsa County”) and the Motion to Dismiss of defendants
City of Tulsa and the City of Tulsa ex rel Tulsa Police Department [Dkt. #14] (collectively,
“City”].
Plaintiff’s Complaint asserts a claim under 42 U.S.C. § 1983 for violation of plaintiff’s
Fourth and Fourteenth Amendment rights, as well as common law claims. Plaintiff alleges he
was arrested by the Tulsa Police Department on May 8, 2007, and charged by the Tulsa County
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District Attorney’s Office with first degree murder, shooting with intent to kill and robbery with
a firearm. [Dkt. #2, ¶14]. All charges against him were dismissed and he was released from
custody on August 27, 2007. [Id., ¶15]. Plaintiff was arrested again on October 1, 2007, and
charged again with the same crimes, plus an additional count of conspiracy. [Id., ¶16]. He
alleges that during his incarceration, numerous hearings were passed over his objection at the
request of the District Attorney. [Id., ¶17]. On March 4, 2008, the original three counts were
dismissed, and on March 17, 2008, he bonded out of custody. [Id., ¶¶18-19]. The remaining
conspiracy count against plaintiff was dismissed at the request of the State of Oklahoma on
March 17, 2009. [Id., ¶20].
In his first cause of action, plaintiff asserts a claim of negligent hiring, training and
supervision against the Tulsa County Board of County Commissioners, Tulsa County District
Attorney’s Office and Hawkins. He alleges defendants “had a duty to properly train and
supervise its agents, employees and anyone acting on its behalf in the investigation and
prosecution of persons so that individuals were not subjected to unreasonable, duplicitous and
vexatious prosecution and imprisonment,” [Id., ¶22], and that they “breached the duty owed to
Plaintiff by failing to exercise reasonable care in the hiring, training and supervision of its
employees and agents such that Plaintiff was unreasonably prosecuted and falsely imprisoned for
over two years.” [Id., ¶24].
In his second cause of action, plaintiff asserts a claim for malicious prosecution against
the Tulsa County District Attorney’s Office and the County of Tulsa, alleging “it is the policy,
practice and custom of the office to continuously arrest and prosecute persons without probable
cause who have committed no crime.” [Id., ¶28].
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In his third cause of action, plaintiff asserts a claim for negligence against all defendants,
alleging defendants “had a duty to use reasonable care in the arrest and prosecution of Plaintiff,”
[Id., ¶31], and defendants “breached said duty by failing to exercise reasonable care in the arrest
and prosecution of Plaintiff, by arresting and subjecting him to prosecution multiple times after
the original charges were dismissed, by keeping him imprisoned under the custody of the state
for crimes he did not commit and which the State had no reasonable basis for pursuing and by
failing to promptly and expeditiously investigate and review his case such that he remained in
custody for nine (9) months of his life for crimes for which he was innocent.” [Id., ¶32].
Plaintiff’s final cause of action is against the Tulsa County District Attorney’s Office and
County of Tulsa for false arrest and false imprisonment. He alleges his Fourth and Fourteenth
Amendment rights to be free from unreasonable seizure of his person and unreasonable searches
of his property were violated “when twice, claiming to act under proper legal authority, they
unlawfully detained and then arrested plaintiff without any probable cause or reasonable basis
for believe [sic] that Plaintiff had violated the law.” [Id., ¶36].
Plaintiff seeks punitive and actual damages. [Id., ¶¶24, 29, 34, 38, 41].
Both the City and County Defendants assert that plaintiff’s claims are time barred and
that the complaint fails to state a claim upon which relief can be granted. Additionally, the
County Defendants argue the suit should be dismissed because plaintiff failed to serve them
within the 120-day time limit set by Fed.R.Civ.P. 4(m).
Section 1983 Claim
The statute of limitations for § 1983 actions is governed by the forum state’s law
applicable to personal injury actions. Board of Regent v. Tomanio, 466 U.S. 478, 483-84 (1980).
In Oklahoma, the statute of limitations is two years. Price v. Philpot, 420 F.3d 1158, 1162 (10th
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Cir. 2005). Although state law governs statute of limitations issues, federal law determines the
accrual of § 1983 claims. Baker v. Board of Regents, 991 F.2d 628, 632 (10th Cir. 1993).
“[S]ince the injury in a § 1983 case is a violation of a Constitutional right, such claims accrue
when the plaintiff knows or should have known that his or her Constitutional rights have been
violated.” Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998) (quotations and citations
omitted). “Claims arising out of police actions toward a criminal suspect, such as arrest,
interrogation, or search and seizure, are presumed to have accrued when the actions actually
occur.” Beck v. City of Muskogee Police Dept., 195 F.3d 553, 558 (10th Cir. 1999).
Plaintiff’s § 1983 claim is based on alleged unreasonable seizure of his person and
unreasonable searches of his property. Therefore, under Beck, his claim arguably accrued at the
time of his first arrest on May 8, 2007. In any event, it accrued no later than his second arrest on
October 7, 2007. This action was not commenced until July 26, 2010. [Dkt. #2]. Therefore, his
§ 1983 claim is time barred.
Common Law Claims
Plaintiff’s remaining claims are common law claims over which this court declines to
exercise pendent jurisdiction.
Conclusion
For the foregoing reasons, defendants’ Motions to Dismiss [Dkt. ## 9, 14] are granted.1
ENTERED this 23rd day of September, 2011.
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No motion to dismiss was filed on behalf of defendant James Hawkins, Tulsa County Assistant District Attorney.
However, sua sponte dismissal is permissible when it is patently obvious plaintiff could not prevail on the facts
alleged and amendment would be futile. McKinney v. State of Okl., Dept. of Human Servs., 925 F.2d 363, 368 (10th
Cir. 1991).
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